The State v Kenny Koget

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 March 2017
• Citation: (2017) N6682
• Court: National Court
• Year: 2017
• Judgement Number: N6682

Full : CR Nos 1116-1120 of 2014; The State v Kenny Koget, Edwin Koget, Robert Koget, Moses Dadu & Sylvester Dadu (2017) N6682

National Court: Cannings J

Judgment Delivered: 17 March 2017

N6682

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 1116-1120 OF 2014

THE STATE

V

KENNY KOGET, EDWIN KOGET, ROBERT KOGET,

MOSES DADU & SYLVESTER DADU

Madang: Cannings J

2016: 9, 10, 16 March, 3 May, 7, 8 June,

7 July, 12, 15 August, 19 October

2017: 17 March

CRIMINAL LAW – wilful murder – Criminal Code, Section 299(1) – elements of offence – whether any of the accused killed the deceased – whether killing unlawful – whether intention to kill – Criminal Code, Section 7 – whether any accused enabled or aided another in committing the offence.

Five accused were charged with wilful murder of a man who was chased and stabbed following an altercation between two groups of people at a market. The State alleged that the fourth and fifth accused directly killed the deceased by stabbing him, that they acted unlawfully, intending to cause his death, making them guilty of wilful murder under Section 299(1) of the Criminal Code, and that the other accused enabled and aided the fourth and fifth accused to commit the offence, making them also guilty of wilful murder under Sections 7(1)(b) and (c) of the Criminal Code. All accused denied being present and presented alibi evidence.

Held:

(1) Under Section 299(1) of the Criminal Code the offence of wilful murder has three elements:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased.

(2) It was proven beyond reasonable doubt that the fourth and fifth accused killed the deceased as: there was credible eyewitness evidence, the alibis of the fourth and fifth accused were unconvincing, there were no significant inconsistencies in the State’s case and the medical evidence was consistent with the State’s case.

(3) There were no excusatory defences relied on, so the killing of the deceased was unlawful.

(4) It was proven that the fourth and fifth accused intended to kill the deceased. They were each guilty of the offence of wilful murder.

(5) As to the first and second accused the State proved that they were present but failed to prove for the purposes of Sections 7(1)(b) and (c) of the Criminal Code that they aided or assisted the fourth and fifth accused. As to the third accused the State failed to prove that he was present. The first, second and third accused were thus acquitted.

(6) In summary, the fourth and fifth accuseds were convicted of wilful murder. The first, second and third accused were acquitted.

Cases cited:

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153

Browne v Dunn (1893) 6 R 67 (HL)

Fei Stanley v The State (2006) SC1324

Jimmy Ono v The State (2002) SC698

John Beng v The State [1977] PNGLR 115

John Jaminan v The State (No 2) [1983] PNGLR 318

Kampangio v R [1969-70] PNGLR 218

Kutau v The State (2007) SC927

Rex Paliau v The State (2016) SC1537

The State v Abaya Ulas (2010) N4009

The State v David Yakuye Daniel (2005) N2869

The State v Ephraim Ria Boa (2008) N3436

The State v Jenny Dei (2011) N4231

The State v John Buku Kailomo (2007) N4997

The State v Melchior Kapus (2010) N4114

The State v Moses Nasres (2008) N3302

The State v Paul Gambu Laore & 11 Others (2007) N5026

The State v Raphael Kuanande [1994] PNGLR 512

The State v Sapik Tommy (2014) N5575

TRIAL

This was the trial of five accused charged with wilful murder.

Counsel:

F K Popeu, for the State

A Meten, for the Accused

17th March, 2017

1. CANNINGS J: The five accused are charged with the wilful murder of Patrick Ngsem at Bemlon, in the Vidar area of Madang District, Madang Province, on Sunday 6 July 2014. They have pleaded not guilty so a trial has been conducted. The State’s case is that:

· the fourth and fifth accused, Moses Dadu and Sylvester Dadu, are the principal offenders and are guilty of wilful murder under Section 299(1) of the Criminal Code as they directly and unlawfully killed the deceased by stabbing him, intending to cause his death; and

· the first, second and third accused, Kenny Koget, Edwin Koget and Robert Koget, enabled and aided the fourth and fifth accused to commit the offence, thus making them guilty of wilful murder under Sections 7(1)(b) and 7(1)(c) of the Criminal Code.

All accused denied being present and presented alibi evidence.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence, from a site visit conducted after the close of evidence and from submissions of counsel:

· An incident in which the deceased, aged 26, lost his life occurred at or near Bemlon market, on the North Coast Road, 25 kilometres north of Madang town on Sunday 6 July 2014. Bemlon is a small village, next to the larger village of Rempi.

· The incident followed immediately after a fight between two groups of young men. The deceased was a member of one of the groups.

· As a result of the fight the deceased and other members of his group were chased by the other group. While being chased the deceased fell and was stabbed twice and died shortly afterwards as a result of the wounds he suffered.

· The cause of the fight is unknown. It is also not known what the deceased is alleged to have done that would have caused others to chase and stab him.

· The first, second and third accused are brothers, aged 25, 27 and 30 years respectively at the time of the incident. The fourth and fifth accuseds are brothers, aged 19 and 18 years respectively at the time of the incident.

· All accused except the second accused, Edwin Koget, live at Bemlon. The houses of the first and third accused, Kenny Koget and Robert Koget, are adjacent to each other and at a spot that, by a road track, is approximately 265 metres from the market. By taking a direct walking track the distance is approximately 200 metres. The fourth and fifth accused, Moses Dadu and Sylvester Dadu, live together in a house at a spot that, by a road track, is approximately 250 metres from the market. By taking a direct walking track the distance is approximately 150 metres. The houses of the Koget brothers is approximately 50 metres from the house of the Dadu brothers.

· The second accused, Edwin Koget, does not live at Bemlon. His house is on a mountain top approximately 1.5 kilometres from Bemlon.

· The Police were called and arrived on the scene soon after the incident. The five accused were taken into custody in the afternoon of the incident.

ISSUES

3. As the fourth and fifth accused are alleged to be the principal offenders, the Court’s attention must be focussed on them first. They have been charged under Section 299(1) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

4. The three elements of the offence are that:

· the accused killed the deceased;

· the killing was unlawful; and

· the accused intended to cause the death of the deceased (or some other person).

5. The Court must determine whether those elements have been proven beyond reasonable doubt. A decision will then be made on whether the fourth and/or fifth accused are guilty of wilful murder or any other offence (eg murder or manslaughter). If either or both are guilty, the Court’s attention will shift to the other accused to determine whether any of them aided or assisted the principal offender(s) in committing the offence or is otherwise criminally liable under Section 7 of the Criminal Code. If both the fourth and fifth accused are found not guilty of any offence, the others will also be acquitted. The issues are addressed in this order:

1. Did the fourth or fifth accused kill the deceased?

2. If yes, was the killing of the deceased unlawful?

3. If yes, did the fourth or fifth accused intend to cause the death of the deceased?

4. Are the fourth or fifth accused guilty of wilful murder or any other offence?

5. Are the first, second or third accused guilty of any offence?

1 DID THE FOURTH OR FIFTH ACCUSED KILL THE DECEASED?

6. This is a question of fact, to be determined by applying the definition of killing in Section 291 (definition of killing) of the Criminal Code:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

7. The question is whether Moses Dadu and/or Sylvester Dadu directly or indirectly caused the death of the deceased. Resolution of this issue requires a:

· summary of evidence for the State;

· summary of evidence for the defence;

· determination of the question whether the fourth and/or fifth accused killed the deceased.

Evidence for the State

8. Five witnesses...